5. What Role for Victims?

In this session, we will look at the potentially disruptive presence of victims for the trial and the very definition of criminal justice. Traditionally, victims were very much absent from criminal justice in Canada and beyond. However, a strong movement began to manifest itself in the 1970s to ensure that the system at least did not end further victimizing victims. Contrary to an inquisitorial process, where victims typically have a much more central role, the adversarial procedure of the common law is much less at ease with making room for victims. In an accusatorial procedure, there can really only be two parties. This does not meant that rights of an administrative nature, on the edges of the criminal process, cannot be given more pride of place but that it is difficult to consider that victims are "parties" as such.

The United Nations had a key role in adopting the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. This is not an international treaty, just soft law that nonetheless was adopted by the UN General Assembly and has a certain weight. For our purposes, focus mostly on the rights of victims of crime. The broad parameters of a more victim-sensitive regime are outlined. For example, such efforts should be "without prejudice to the rights of suspects or offenders". The central idea is that "Victims should be treated with compassion and respect for their dignity." This means in particular a certain access to justice and a certain responsiveness to the needs of victims. There is both a specifically judicial and a more generally administrative aspect to this: the former is clearly the most complex from the point of view of justice.

It took 30 years for a Victim Bill of Rights to be adopted in Canada. The key rights protected therein are information, protection, participation and restitution. The practical implementation of those rights, however, is more complicated. One issue for example is whether the rights of the victims, especially victims who testify, might ever end up curtailing those of the defence. The rights to privacy or freedom of thought or religion of victims, for example, might clash with the need for a full adversarial process and open cross-examination. Although victims have a right to be consulted, the case law has also drawn the line quite clearly to indicate that they do not have the upper hand on the prosecution (in inquisitorial systems the victims may be better able to 'piggy-back' on the state's action). The question arises in particular in cases where victims do not support prosecutions, for example in cases of intimate partner violence. How much should the Prosecution defer to such wishes, and how much should it be willing to ignore them? There are problems associated with both positions, the risk of sacrificing the public interest and the protection of victims, or the risk of further victimizing victims by not taking their wishes seriously.

The participation of victims remains an area of contention among commentators. More traditionalist scholars are particularly wary of how giving too much of a place to victims might upset the delicate balance of the adversarial trial and end up violating the rights of the defendants. Scholars who are more open to victim participation will point out that victim clearly have rights too, and that insofar as possible these should be respected. There are many ways in which the rights of the defence, the prerogatives of the Crown and the dignity of victims can be reconciled but these typically take work and subtlety, and this is an area that has emerged as a strong challenge of the criminal justice system's traditional methods.
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